Barrett v. Peterson

OPINION

ORME, Judge:

Appellant challenges the trial court’s denial of his motion for a new trial, in which he claimed the trial court erred by improperly limiting voir dire of the jury panel. We agree, and reverse and remand for a new trial.

FACTS

Appellant, William Barrett, brought a medical malpracticé action against appellee, Dr. Dennis R. Peterson, claiming appellee failed to properly diagnose appellant’s acoustic neuroma or take other action that allegedly would have resulted in diagnosis of his condition.

On the first day of the two-week trial, appellant’s counsel submitted to the trial court a set of eighty-two voir dire questions accompanied by a supporting memorandum. Of these eighty-two questions, eleven were designed to probe the potential jurors’ exposure to tort-reform material.1 Submitted with the proposed questions were then-current, widely distributed advertisements and articles setting forth insurance industry viewpoints on tort-reform issues.2 Appellant also requested to personally conduct limited voir dire examination.

During jury selection, the trial judge first asked a number of general voir dire questions, and then asked counsel if there were any questions they wished him to ask the panel. After an off-the-record discussion with appellant’s counsel, the trial judge asked the prospective jurors several specific questions not relevant to the issue of tort-reform exposure. Over appellant’s objection, the trial judge refused to ask the jurors any of appellant’s submitted questions specifically directed at the issue of tort reform.

The jury returned a no-cause-of-action verdict in favor of appellee. Appellant subsequently moved for a new trial arguing, in part, that the trial court improperly limited the jury voir dire examination by refusing to ask potential jurors the tort-reform bias questions he submitted. The trial court denied the motion, and this appeal followed.

Appellant claims on appeal that the trial court failed to ask appropriate preliminary questions of the jury, which would have allowed him to discover which jurors had been exposed to tort-reform material. He argues that his inability to detect such jurors denied him an opportunity to discover whether jurors who had been exposed were biased by such exposure. He claims the court committed reversible error by refusing to allow his counsel to personally conduct voir dire examination and in excluding appellant’s proffered voir dire questions.

*98STANDARD OF REVIEW

We review challenges to the trial court’s management of jury voir dire under an abuse of discretion standard. Evans v. Doty, 824 P.2d 460, 462 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992); Doe v. Hafen, 772 P.2d 456, 457-58 (Utah App.1989). Generally, the trial court is afforded broad discretion in conducting voir dire, “but that discretion must be exercised in favor of allowing discovery of biases or prejudice in prospective jurors.” State v. Hall, 797 P.2d 470, 472 (Utah App.), cert. denied, 804 P.2d 1232 (Utah 1990). See also State v. James, 819 P.2d 781, 797-98 (Utah 1991) (noting importance of voir dire process in eliminating bias and prejudice from trial proceedings). This court will overturn a trial court’s discretionary rejection of voir dire questions only upon a showing that “the abuse of discretion rose to the level of reversible error.” Hall, 797 P.2d at 472. A trial court commits reversible error when, “ ‘considering the totality of the questioning, counsel [is not] afforded an adequate opportunity to gain the information necessary to evaluate jurors.’ ” Evans, 824 P.2d at 462 (quoting State v. Bishop, 753 P.2d 439, 448 (Utah 1988)).

TORT-REFORM INQUIRY DURING JURY VOIR DIRE

Voir dire serves two distinct purposes: 1) to allow counsel to uncover biases of individual jurors sufficient to support a for-cause challenge and 2) to gather information enabling counsel to intelligently use peremptory challenges. State v. Sherard, 818 P.2d 554, 558 (Utah App.1991), cert. denied, 843 P.2d 516 (Utah 1992); Doe v. Hafen, 772 P.2d 456, 457 (Utah App.1989). In light of “the important role that jury voir dire has in ensuring that all litigants in a case receive a fair and impartial jury,” State v. James, 819 P.2d 781, 797 (Utah 1991), courts must liberally exercise voir dire beyond minimal constitutional requirements in order “to eliminate bias and prejudice from the trial proceedings.” Id. at 798. In fact, the Utah Supreme Court has emphasized that

the fairness of a trial may depend on the right of counsel to ask voir dire questions designed to discover attitudes and biases, both conscious and subconscious, even though they “would not have supported a challenge for cause.” _ Juror attitudes revealed during voir dire may indicate dimly perceived, yet deeply rooted, psychological biases or prejudices that may not rise to the level of a for-cause challenge but nevertheless support a peremptory challenge.

State v. Worthen, 765 P.2d 839, 845 (Utah 1988) (emphasis added) (quoting State v. Ball, 685 P.2d 1055, 1060 (Utah 1984)).

Such admonitions can be at odds with the traditional reluctance of trial courts to allow questions during voir dire that might suggest defendant possesses insurance coverage for the damages claimed by plaintiff. Thus, courts have been concerned that allowing plaintiffs to question jurors during voir dire about tort-reform issues would infuse the issue of insurance coverage into jury deliberations, thereby prejudicing the defendant’s interests. See Evans v. Doty, 824 P.2d 460, 463 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992); Borkoski v. Yost, 182 Mont. 28, 594 P.2d 688, 692-93 (1979).3 Yet, more recently, courts have been willing to balance the competing interest of selecting an impartial jury, given the jurors’ possible exposure to tort-reform material and the prejudice injected into the proceedings by the questioning itself. Of course, these inquiries into insurance-related issues cannot be used merely to inform the jury that defendant is covered by insurance, but rather must be conducted as good faith efforts to uncover bias. Evans, 824 P.2d at 464; Borkoski, 594 P.2d at 695.

*99Plaintiffs may address the issue of insurance via voir dire questioning in three situations: (1) to obtain information regarding prospective jurors’ employment, investment, and similar relationships with insurance companies; (2) to determine whether potential jurors have been exposed to specific, identifiable media campaigns funded by insurance companies and designed to convince the public of the impact of large damage awards on insurance premiums; and (3) to probe jurors’ knowledge of and attitudes toward medical negligence and tort reform in general. Evans, 824 P.2d at 463. We need not discuss the first situation because the trial court in this case asked questions that adequately probed the jurors’ relationships with insurance companies. To evaluate the permissible limits for inquiries pertaining to the latter two categories, we employ the analytical framework which has been developed in Utah. See id. at 464; Hafen, 772 P.2d at 468-69. See also Borkoski, 594 P.2d at 695.

A. Inquiries Concerning Specific Tort-reform Campaigns

The case of Borkoski v. Yost, 182 Mont. 28, 594 P.2d 688 (1979), set out a procedure for determining when a plaintiff can ask jurors about their exposure to specific tort-reform campaigns and set limits on the extent of such inquiries. In Borkoski, a plaintiff in a wrongful death action requested the trial court to permit voir dire of prospective jurors “as to the influence of a national campaign by leading insurance companies with regard to jury awards.” Id. 594 P.2d at 689. The defendant’s insurance company had been an active participant in that campaign. Id. The plaintiff presented copies of magazines, such as Time, Newsweek, and Sports Illustrated, which carried the insurance-sponsored ads. Id. at 689-90. At trial, the plaintiff sought permission to determine whether any prospective jurors had been exposed to the national campaigns. Id. at 690. The trial court refused his request. Id. On appeal, plaintiff claimed that the trial court’s refusal to allow his voir dire inquiry prevented him from receiving a fair and impartial jury by denying him an opportunity to ascertain whether the jurors were biased as a result of exposure to tort-reform material. Id.

After reviewing the purposes for jury voir dire and the policy behind concealing information from jurors concerning insurance, the court developed a two-tier approach for voir dire inquiries that balances the conflicting interests of selecting an impartial jury and the prejudice infused into the proceedings by the questioning about exposure to tort-reform information. Id. at 695. According to the Borkoski court, a plaintiff who wishes to determine whether jurors have been biased by specific tort-reform campaigns must make an initial showing of possible prejudice. Id. at 694. That is, the plaintiff must demonstrate that potential jurors are likely to have recently been exposed to such material. See id. at 694-95. One method for making such a showing is by demonstrating that articles concerning tort reform were recently published in widely-read media. See id. After this initial showing, the plaintiff, in order to determine which jurors have been exposed to the material, is entitled to either or both forms of the following preliminary, first-tier questions:

(1) whether the prospective juror has heard of or read anything (not necessarily related to insurance) which might affect his ability to sit as an impartial juror ...; or (2) whether the prospective juror regularly reads any of the magazines or newspapers in which it has been demonstrated that the insurance advertisements or articles had appeared
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Id. at 695. If any juror answers these inquiries affirmatively, the plaintiff is entitled to proceed to more specific, second-tier questions concerning tort reform. See id. Such questions, in an attempt to discover bias within exposed jurors,

may inquire whether a prospective juror has heard or read anything to indicate that jury verdicts for plaintiffs in personal injury eases result in higher insurance premiums for everyone; if so, whether the prospective juror believes such materials; and if so, whether that belief will interfere with *100the juror’s ability to render a fair and impartial verdict.

Id. at 694. Depending on the response to these inquiries, further questioning can be pursued, subject to the trial court’s discretion.4 Id.

In Evans v. Doty, 824 P.2d 460 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992), this court directly applied the Borko-ski analysis to voir dire questioning about specific tort-reform material. Id. at 465-66. Evans involved a medical malpractice action where plaintiffs counsel requested a number of questions aimed at uncovering exposure to tort-reform material and submitted a 1986 Time magazine article “as a specific example of such propaganda.” Id. at 462. Instead of asking the plaintiffs proposed tort-reform voir dire questions, the trial court in Evans asked:

Now, many of you have heard and read articles, and there have been television programs, with regard to negligence on the part of doctors.5 Do any of you have any strong feelings as a result of seeing or reading anything about medical negligence that would make it so that you couldn’t be fair and impartial here today? Now do any of you have any strong feelings about anyone bringing a lawsuit against a doctor?

Id. at 463. After the first question and ensuing answers and discussion, two potential jurors were dismissed for cause, but there were no responses to the second question. Following additional voir dire, the trial court impanelled the jury over plaintiffs objections. Id.

Insofar as the plaintiff contended she was entitled to ask specific questions about the Time article, the Evans court concluded that because the article was three-years old at the time of trial, it was unlikely that any juror would remember reading that particular piece. Id. at 466-67. The plaintiff therefore failed to make the initial showing of prejudice required under the Borkoski analysis. Id. at 467. Accordingly, the trial court did not abuse its discretion by refusing to ask the plaintiffs questions regarding exposure to specific tort-reform material. Id.

B. Inquiries Concerning General Knowledge of Tort Reform

In addition to voir dire questions aimed at uncovering exposure to specific tort-reform campaigns or advertisements, the plaintiff in Evans claimed the court erred by refusing to ask questions submitted to uncover exposure to tort-reform information in general. Evans v. Doty, 824 P.2d 460, 467 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992). This proposed inquiry concerned the third category of insurance-related voir dire: prospective jurors’ general knowledge and attitudes concerning tort reform and insurance premiums. Although Borkoski only involved a situation in which the plaintiff wanted to uncover exposure to specific tort-reform material, the Evans court reasoned that the underlying rationale of Borkoski nevertheless warrants inquiry into general exposure, even in the absence of specific examples of tort-reform campaigns or advertisements. Id. at 465.

The Evans court explained that the decision about whether such voir dire questions should be asked “requires a balancing of the relative interests of the parties in light of the facts and circumstances of the particular *101case.” Id. at 467. Specifically, “in tort cases, and more particularly in medical malpractice eases, we cannot ignore the reality that potential jurors may have developed tort-reform biases as a result of an overall exposure to such propaganda.” Id. “Reason suggests that exposure to tort-reform propaganda may foster a subconscious bias within certain prospective jurors.” Id. This is precisely the type of bias that counsel must be allowed to uncover if an impartial jury is to be impaneled. Id. at 462. Accordingly, even when specific examples of tort-reform propaganda are not presented to the court, a “plaintiff has a legitimate interest in discovering which jurors may have read or heard information generally on medical negligence or tort reform.” Id. at 467.

As previously noted, the trial court in Evans first asked potential jurors whether, “as a result of seeing or reading anything about medical negligence,” they would be unable to act as fair and impartial jurors in a medical malpractice action. Id. at 463. This inquiry proved inadequate upon appellate review. Id. at 467. The Evans court reasoned that although the trial court asked questions “sufficient to ferret out actual tort-reform biases,” id., which would be essential for proper use of for-cause challenges, the questions did not allow the plaintiff an opportunity to know which of the potential jurors had been exposed to tort-reform propaganda, totally aside from whether the prospective jurors would themselves admit such exposure had changed their attitudes or biased them. See id. Thus, concluded the Evans court, the trial court should have asked the potential jurors some of the plaintiffs questions concerning their exposure to tort reform material, not just questions concerning whether they, in their personal opinion, had been biased by any such exposure. Id.

In light of the pervasive dissemination of tort-reform information, and the corresponding potential for general exposure to such information by potential jurors, a plaintiff is entitled to know which potential jurors, if any, have been so exposed. See id. Plaintiff is entitled to such information absent any particular showing of specific campaigns, advertisements, or literature offered for the purpose of showing potential prejudice. See id. Failure to ask such questions ignores the plaintiffs “need to gather information to assist in exercising ... peremptory challenges.” Id.

We now proceed to assess appellant’s claim with this framework in mind.

PROPRIETY OF TRIAL COURT’S VOIR DIRE QUESTIONING IN THIS CASE

In the instant case, appellant essentially claims the trial court’s failure to ask appropriate preliminary questions or to ask any of the supplemental voir dire questions concerning tort reform, coupled with its refusal to allow his counsel to conduct limited voir dire,6 impaired his ability to intelligently *102exercise his peremptory challenges. The trial court in this ease asked the prospective jurors general questions regarding whether they would be willing to give a large award if it was supported by evidence, whether they felt it appropriate to resolve disputes in court, whether any of them were involved in the writing of insurance, and whether any of them were in an unfair frame of mind.

Appellant argues these questions were insufficient to elicit information concerning exposure to medical negligence and tort-reform material. Through his proposed voir dire questions, appellant’s counsel attempted to ask the prospective jurors, among other things: (1) whether they had “read magazine or newspaper articles or other literature about medical negligence,” and (2) whether they had “heard anything on television or radio about the medical negligence issue.” These questions, as phrased, are no less neutral or general than the preliminary questions required under the voir dire framework outlined in Evans.7

The proper lines of inquiry, as explained in that opinion, clearly require a court to ask potential jurors the sort of general tort-reform questions appellant sought to ask, in order to uncover exposure to tort reform material, regardless of whether the plaintiff provides specific examples of tort-reform campaigns. Moreover, appellant in the instant ease would have been entitled to ask his requested questions under the Borkoski approach alone because he made an initial showing of prejudice by providing specific, widely distributed articles and advertisements that he believed could have biased prospective jurors.

In this case, none of the questions asked by the trial court even remotely addressed whether the prospective jurors had heard or read anything relating to tort-reform issues. Nor did the trial court attempt to address in a more general fashion the issues of medical negligence and tort-reform propaganda in its voir dire questioning. The court asked only broad questions concerning the prospective jurors’ self-assessed ability to be fair and impartial. As a result of this limited line of questioning, appellant was wholly unable to determine which, if any, prospective jurors had been exposed to tort reform propaganda, much less whether that exposure produced hidden or subconscious biases affecting their ability to render a fair and impartial verdict. Thus, under Evans, the trial court’s line of questioning ignored appellant’s need to garner information necessary both to detect actual bias and to intelligently exercise his peremptory challenges.

Accordingly, we conclude that the trial court should have asked the prospective jurors appropriate preliminary questions — either those suggested by appellant or alternative questions more to its liking — designed to detect, initially, whether any of the prospective jurors had been exposed to tort reform and medical negligence propaganda. Had the trial court done so, and had any of the jurors responded positively to these initial questions, appellant would have been entitled to have more specific questions put to the jurors designed to probe those jurors’ attitudes regarding, and possible bias resulting from, the tort-reform information.

HARMLESS ERROR?

Under Evans v. Doty, 824 P.2d 460 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992), our conclusion that the trial court should have allowed additional voir dire questioning does not end our inquiry. Id. at 467. “The failure to ask an appropriate question on voir dire does not always constitute an abuse of discretion requiring reversal.” Id. However, “[sjubstantial impairment of the right to informed exercise of peremptory challenges is reversible error.” Hornsby v. Corporation of the Presiding Bishop, 758 P.2d 929, 933 (Utah App.1988). Accordingly, we must reverse if “ ‘considering the totality of the questioning, counsel [is not] afforded *103an adequate opportunity to gain the information necessary to evaluate the jurors.’ ” Id. at 932 (quoting State v. Bishop, 753 P.2d 439, 448 (Utah 1988)).

Appellee argues that regardless of whether the trial court asked questions sufficient to determine prospective jurors’ exposure to tort-reform information, a trial court’s voir dire ruling and subsequent entry of judgment may be reversed only if appellant demonstrates that the absence of error committed below would have resulted in a different outcome at trial. See Hall v. Blackham, 18 Utah 2d 164, 417 P.2d 664 (1966); Onyeabor v. Pro Roofing, Inc., 787 P.2d 525, 529 (Utah App.1990). While this concept of prejudicial error may be appropriately applied in cases where the appellant claims, for example, an error in the admission of evidence, such a standard is impossible to apply in the context of voir dire questioning. An appellant claiming that the trial court’s unreasonable limitation of voir dire substantially impaired his ability to exercise peremptory challenges simply cannot prove, in the traditional way, that prejudice resulted from the error. Appellant cannot show with any certainty that had certain questions been asked, particular responses would have been received; that certain jurors would then have been challenged for cause or peremptorily; and that particular, more favorably predisposed jurors would have been seated instead, who would have deliberated to a different result. Accordingly, in this context, we apply the test enunciated in Hornsby: Prejudicial error is shown if the appellant’s right to the informed exercise of peremptory challenges has been “substantially impaired.” 758 P.2d at 933.

Appellee argues that even assuming the trial court was obligated to ask prospective jurors preliminary questions concerning their exposure to medical negligence and tort-reform propaganda, the court conducted an appropriate inquiry overall. Therefore, appellee claims that any failure to ask preliminary tort-reform questions must be deemed harmless error, the conclusion reached in Evans. See 824 P.2d at 468. We disagree. While the trial court in Evans failed to ask prospective jurors questions regarding exposure to tort reform information, the court in that case engaged in extensive voir dire overall, during which it commented about articles and television programs in asking them whether anything they had read or heard with regard to medical negligence would affect their ability to be fair and impartial. See id. at 467. The court also inquired whether any had strong feelings about lawsuits against doctors. See id.

The record in this case, by contrast, reveals that despite appellant’s submission of supplemental voir dire questions accompanied by a supporting memorandum, no pertinent questions regarding tort-reform and medical negligence issues were asked, even indirectly, nor were such matters even touched upon by the trial court. In view of our earlier conclusion that appellant was denied an opportunity to ferret out jurors who had been exposed to tort-reform material, and was prevented from further questioning of such jurors, appellant’s ability to intelligently exercise his peremptory challenges was substantially impaired. The factors which permitted the Evans court, in what must have been a close call, to determine that the voir dire problems there were harmless, are simply not present here. In the instant case, the overall voir dire was much less extensive. Moreover, in contrast to Evans, the trial court did not so much as mention the subject of articles and programs on medical negligence, nor did it verbalize the concept of lawsuits against doctors prompting discernible emotions.

Our conclusion that the error in this case was prejudicial to appellant under the Hornsby standard, uniquely applicable in the jury voir dire context, is further supported by an examination of the two crucial purposes behind asking preliminary questions aimed at discerning exposure to tort-reform information. First, these questions identify those jurors to whom particularized questions aimed at detecting actual bias may be productively directed. Second, regardless of a prospective juror’s response to particularized questions about the effect of mere exposure, counsel can include the fact of exposure in the calculus for determining how to best utilize peremptory challenges. Thus, when *104proper preliminary questions are asked, counsel is able to direct peremptory challenges at those who have been exposed, even if those jurors claim not to have been influenced by such exposure. Because appellant here was entirely unable to identify exposed jurors, he was never allowed to ask appropriate questions directed toward detecting actual bias, expressed or subconscious, and he was denied information helpful in the intelligent use of his peremptory challenges. Accordingly, the inadequate voir dire in this case substantially impaired appellant’s right to the informed exercise of peremptory challenges, and thus constitutes reversible error. See Hornsby, 758 P.2d at 933.

As we noted in Hornsby, our decision today does not “require the trial court to propound the precise questions proposed by [litigants].” Id. Trial courts retain their considerable discretion to contain voir dire within reasonable limits. See id. We hold only that in cases such as this one, the plaintiff is entitled during voir dire to elicit information from prospective jurors as to whether they have read or heard information generally on medical negligence or tort reform, and to follow up with appropriate questions if affirmative responses are received.

CONCLUSION

The trial court’s failure to ask prospective jurors threshold questions sufficient to elicit information on the jurors’ possible exposure to tort-reform and medical negligence information prevented appellant from detecting possible bias and from intelligently exercising his peremptory challenges. The trial court’s limitation of voir dire questioning substantially impaired appellant’s right to the informed exercise of his peremptory challenges, and therefore constitutes reversible error. The judgment in favor of appellee is reversed, and the case is remanded for a new trial.

GREENWOOD, J., concurs.

. "Tort-reform material,” and other similar phrases used in this opinion, refers to information about large recoveries in tort cases and the detrimental effect those awards purportedly have on insurance premiums and the availability of insurance.

. One of these articles, entitled "Sorry, America, Your Insurance Has Been Cancelled,” was copied from the widely-read Time magazine. Other material included articles published by the Utah Medical Association, which were aimed at the lay public and had been sent to doctors' offices, presumably for distribution in waiting areas.

. But see Evans, 824 P.2d 460, at 463-64 n. 3 (Utah App.1991), cert. denied, 836 P.2d 1383 (Utah 1992) (discussion of proposition that courts might better control jury speculation about insurance coverage through judicious introduction of the insurance issue during voir dire). See also Slusher v. Ospital, 777 P.2d 437, 442-43 (Utah 1989) ("[T]here is considerable aú-thority to the effect that jurors today assume the presence of insurance.”) (quoting 9 C. Wright & A. Miller, Federal Practice and Procedure § 2388, at 282 (1971)); Broberg v. Hess, 782 P.2d 198, 200-01 (Utah App.1989) (decision whether to inject insurance issues into voir dire questioning requires balancing of interests of each party).

. Ultimately, the Borkoski court held that although denial of the requested voir dire inquiries was in error, it was harmless because the particular ad campaign dealt with the amount of damages and the jury had found that defendant was not even negligent. Hence, the juiy never reached the issue of damages. See Borkoski, 594 P.2d at 695.

The dissenting opinion favors adoption of this aspect of Borkoski. We reject this approach to harmless error analysis in the present context. The distinction between liability and damages may not be as clear in the mind of jurors as it is to lawyers and judges. Stated another way, a juror who has become convinced that damage awards are way out of hand might not restrict the manifestation of his or her bias to the issue of damages; such a juror may well perceive that the first line of attack in keeping damages as low as possible is in finding plaintiff has no cause of action.

. It is noteworthy that the trial court in Evans recognized the likelihood that some jurors had been exposed to tort-reform material, but refused to allow plaintiff to discover who those specific jurors might be.

. Appellant argues that the trial court committed reversible error by refusing to allow counsel either to personally conduct voir dire or to supplement voir dire with his proposed questions. Appellant relies on Whitlock v. Salmon, 104 Nev. 24, 752 P.2d 210 (1988), in which the Nevada Supreme Court held that ‘‘[a] complete denial of attorney-conducted voir dire cannot be construed as a reasonable restriction and therefore the trial judge committed reversible error." Id. 752 P.2d at 213. While this may be the law in Nevada, Utah courts, according to long-standing custom, usually conduct voir dire themselves. See Ostler v. Albina Transfer Co., 781 P.2d 445, 447 (Utah App.1989) (trial judge has considerable discretion in directing manner and form of voir dire examination). Utah Rule of Civil Procedure 47(a) specifically invests trial judges with the discretion to either allow or disallow direct voir dire questioning by counsel. Rule 47(a) provides:

The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as is material and proper or shall itself submit to the prospective jurors such additional questions of the parties or their attorneys as is material and proper.

Utah R.Civ.P. 47(a) (emphasis added). The rule directs that if the trial court itself conducts voir dire, it must allow additional inquiry, either by the court or by the parties, "as is material and proper.” Id. This language gives the trial court discretion in determining whether questions submitted by counsel are material to the case at hand, and whether such questions are proper for jury voir dire. While the trial court is obliged to conduct voir dire so as to allow counsel to intelligently exercise peremptory challenges, Rule *10247(a) does not require that all of counsel's submitted questions be asked, nor that they be asked in the exact form as submitted by counsel, much less does it require that counsel pose the questions. In the end, it is which questions are asked that matters — not who asks them.

. Several of the tort-reform questions submitted by appellant in this case are identical to those submitted by the plaintiff in Evans. See 824 P.2d at 463.